Chamber and committees

I am looking at it but, with respect, I want to—

With respect, I would strongly refute some of the views that have been expressed by the Faculty of Advocates. As Mr Findlay has acknowledged, we are removing a verdict that is not understood by jurors and we are seeking to make associated reforms that are clear, proportionate and balanced, and that have at their core fairness to the complainer and the accused.

On Mr Findlay’s more specific point, the existence of corroboration is one of the main reasons why I and the Government would not support going to near unanimity or unanimity. I understand your point that all the other comparable jurisdictions with a two-verdict system have 10 out of 12 or 12 out of 12, but we do not have hung trials in our system and we still have corroboration, notwithstanding the changes to corroboration as a result of the Lord Advocate’s recent reference.

With regard to the views or concerns that have been expressed regarding the Lord Justice General’s power to remove judges, we have listened carefully and are looking at potential amendments so that the situation is clear and unambiguous. There is an arrangement for the appointment and removal of temporary judges, and it might be that we need to make things clear in the bill by introducing provisions that mirror those arrangements.

On sentencing powers, I am firmly of the view that the sexual offences court should have unlimited sentencing powers. That is a departure from the work that was undertaken in the original review. We should absolutely guard against any perception that the court is a downgrade; it is a court with status that should have the same powers as the High Court, given the gravity of some of the offences that it will be dealing with.

It will be transformative. You will have heard lots of evidence about the opportunities when you build something from the ground up. The founding principle of the court is to improve the experience of complainers. There is broad support for the establishment of a court with national jurisdiction and the ability to operate in around 40 venues across the country, and it is within the gift of us all to shape how the new court is seen.

In respect of resources, the financial memorandum outlines set-up and on-going costs. Inevitably, there will be costs, and we will look at that issue constantly from now until implementation because, as we know, costs can change. In the longer term, there are potential savings to be had with the more efficient use of court resources. Indeed, we have already seen in other courts in the system the benefits of really good judicial case management.

What we are talking about is around 700 cases that are currently in our system—both sheriff and jury cases and solemn cases in the High Court—and the issue is also the more effective management of those cases, which was at the heart of Lady Dorrian’s review. Given that we are now dealing with a huge increase in those cases compared with 10 years ago, thought needed to be given to the efficient case management of those particularly difficult cases in the interests of serving justice and in the interests of complainers.

We have a stage 2 timetable and a stage 3 timetable that we will all have to adhere to.

Juries are at the core of decisions to convict or acquit, or to use the not proven verdict. You, as I have, will have heard victim testimony about conviction rates and other matters. You will have heard the very strong views of victims and victims organisations about the not proven verdict. The role of juries is integral to that, so I do not accept the narrative that juries are removed from the picture.

I accept that, in responding to low conviction rates or the support for and experience of victims, there must be a whole-systems approach—an end-to-end justice journey. I have never argued against that. The police have made changes to how they investigate. No one is suggesting that anybody’s journey in that regard is over.

With regard to specialisms and prosecuting, again I note that the journey is never over. My challenge has always been that we, as parliamentarians, must avoid the situation in which part of the justice system says, “Actually, the problems don’t rest with us. They rest elsewhere”, when in fact the problems exist throughout the system.

In relation to what you said about conviction rates at the start of your question, Ms Clark, it is greatly frustrating to us all that comparing different jurisdictions’ conviction rates is deeply problematic: data is recorded differently and conviction rates are measured differently. There was an excellent report by the UK Government in 2021, “The end-to-end rape review report on findings and actions”. The Government actually apologised to victims and witnesses for their experiences.

The number and quality of cases that actually get to court have a huge bearing on conviction rates. In England and Wales, we have seen a drop of nearly 60 per cent in charges and prosecutions. Committee members might have seen, in the debate south of the border—I am narrating, not passing comment—that some senior police chiefs have been saying that cherry-picking goes on among prosecutors. I am pointing out the fact that we need a whole-system approach but that we are, right now, focused on this part of the system.

I will start with jury size.

Scotland is an outlier in that we have a jury size of 15, while most other comparable jurisdictions have a jury of 12. The independent Scottish jury research, which was one of the largest studies of its kind, was able to look exceptionally closely at the process of deliberation and decision making, because it involved simulated trials with mock jurors. What it found with regard to jury size perhaps speaks to more commonsense arguments. The research involved some factors being held constant so that the impact of various jury sizes on decision making could be examined. In short, it found that having a jury size of 15 provided no particular advantage for the quality of deliberations but, when the group was a little bit smaller, at 12, there was increased participation and fewer people did not participate. That informed the Government’s view that, because there was more participation, there was better deliberation and there were fewer dominant voices.

I am not giving a view for ever and ever, because that would be beyond any of us at the table, but—

We will make sure that we learn all the relevant lessons from history. If the committee requires us to write to you in detail on the exchange that officials had with Ms McNeill, we will do that.

Is there anything to add from a more legal point of view?

It has not been through the specific door of my office up to this moment in time. I hope that that is not too much information for you, Mr Findlay—